Day on Torts

August 15, 2005

Your Input

Last night I posted the 300th post to this blog in a little less than six months. We have had tremendous success – we have lots of people who visit this site regularly and who have told us that they enjoy what we have to offer.

What can we give you that would help you in your practice? Would you like more information about appellate cases from around the country? Should we spend more time on Tennessee law? Are you interested in the status of the tort reform debate around the country?

Let me know your thoughts. Use the “Comment” link or, if you would rather send me your thoughts privately you can email me at jday@branhamday.com.

August 15, 2005

Case Involving Suicide Allowed to Proceed

by The Law Offices of John Day, P.C.

Elizabeth Shin, a student at MIT, committed suicide. Her parents sued MIT and others. A trial judge has dismissed the case against MIT but allowed it to procede against two psychiatrists and two administrators who are not mental health professionals. This article in the Boston Globe has a nice discussion of the legal theory advanced by the plaintiffs and accepted by the trial judge.

The plaintiffs are pushing the envelope on this one. However, as I said to a fellow plaintiffs’ lawyer the other day, there are only two types of lawyers who make common law – those that are stupid and those who take calculated risks.

Let me explain. Some of us take cases with full knowledge that we are going to have to advance the law to get to a jury. Some folks take cases with no idea that they have no right to recovery until they see the motion to dismiss or motion for summary judgment. The problem with the latter approach is that some cases do not have the right facts to make good law or the facts are not developed appropriately to make good law. Similarly, if you don’t know you are pushing the envelope it may be hard to muster the best arguments in the time period allowed to respond to a motion.

August 14, 2005

Results of Mississippi Trial

by The Law Offices of John Day, P.C.

Paul Minor, a friend and plaintiff’s lawyer from Mississippi, was indicted on a bunch of charges, including bribery. Oliver Diaz, Jr., a member of the Mississippi Supreme Court whom I got to know during some trips to Mississippi, was also indicted.

The trial has been going on for weeks. Last week, Justice Diaz was found “not guilty” on all counts and Paul was found “not guilty” on several counts and the jury was hung on some others.

Some folks say that Paul and the Justice’s most damning sin was that they were Democrats.

August 12, 2005

Verdict Against Greyhound

by The Law Offices of John Day, P.C.

A federal court jury in Winchester has returned an $8M verdict against Greyhound for injuries to a passenger after a man attacked the driver who then lost control of the bus. You can read another press report of the story here.

The injuries were substantial; the plaintiff had some $1.6M in medical expenses.

The Plantiff was able to prove that the company knew of at least 43 prior incidents where passengers attacked drivers and yet it had done nothing to protect its drivers.

August 12, 2005

Should Verdicts Be Required to be Unanimous?

by The Law Offices of John Day, P.C.

Tennessee and a minority of other states require that all 12 jurors agree on the verdict? This article comments on the practice.

I disagree with the requirement of unanimity. It imposes an unfair burden on the plaintiff, particularly in these times of massive anti-plaintiff sentiment fueled by aggressive campaigns of the insurance, health care, and manufacturing industries.

August 11, 2005

AIG Needs Tort Reform NOW!!!!!!!!!!!!!!!!!!

by The Law Offices of John Day, P.C.

AIG’s recent financial disclosures make it clear that the nation’s property and casualty insurers need tort reform now or they wIll be headed to receivership.

I mean, AIG’s profit was only $3,990,000,000. For the 2nd quarter. As in 90 days. As in a profit of about $44,333,000 per day. As in about $1,850,000 per hour every hour of ewvery day. Which is a little over $30,000 per minute. Which comes to about $513 per second, of every hour, of every day, for 90 days. In a row.

Which is up about 50% from last year.

August 11, 2005

Brief Writing 101

by The Law Offices of John Day, P.C.

An appellate lawyer in a big firm got his hand slapped by a 9th Circuit judge for his firm’s choice of words in a brief.

Some examples:

“The district court’s refusal to apply Daubert was erroneous and stands as yet another example of the court’s twisting the substantive law in furtherance of the procedural class action device.”

August 10, 2005

Tragic Truck Wreck

by The Law Offices of John Day, P.C.

This article in the Tennessean is a tragic reminder of how quickly a life can be lost as a result of carelessness.

A truck driver for Diamond Logistics fell asleep at the wheel, went into a parking lot at a local market, and killed one man and injured three others.

A review of the records of the driver and Diamond Logistics will reveal whether the trucker was in compliance with the law at the time he was driving and whether Diamond Logistics was aware of a pattern of deviations from the law, if any. We have had considerable success evaluating driver logs and other materials and proving a pattern and practice of unlawful driving leading to hazardous situations. Hopefully, someone will quickly get to the bottom of this situation and find out what happened in the days and weeks preceeding the wreck.

August 10, 2005

“Peer Review” Actions

by The Law Offices of John Day, P.C.

Here is an article from Time about hospitals and doctors going after doctors in the name of “peer review.”

I recently defended a physician charged by a hospital with poor patient care. I must say that after reviewing the charts I was surprised at the charges – not a single case would have been won by a plaintiff in a medical negligence action. The central allegation involved the treatment of a patient for a serious medical condition of which I had some knowledge because of a past malpractice case where I represented the plaintiff. I knew the proper course of treatment, I knew the survivability rate with proper treatment, and I would have turned the case down on the records without even consulting an expert.

The system is really stacked in favor of the hospital in such cases. As a lawyer, I was shocked at the lack of due process in the system.

August 10, 2005

Motorcycle Helmets

by The Law Offices of John Day, P.C.

I ride a BMW 1200 CLC. My wife rides a Harley Sportster. I did not ride until I hit the age of 45 but I must confess there is nothing quite like riding a motorcycle on a country road on a fall or spring day. It is a blast – a true escape.

It would be fun to ride without a helmet. On the other hand, it would also be stupid. Here is a recent article that demonstrates the risks of riding without one as confirmed by two recent articles.